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Judgment
S. Sujatha, J.—The insurance company is in appeal challenging the award of the MACT, Bellary in MVC No. 309/2010, where as the claimant has filed the cross objections 755/2011 seeking enhancement of compensation awarded by the Tribunal. Both the cases are heard together and taken up for final disposal.
The insurance company has firstly disputed the liability and secondly, the quantum of compensation awarded by the Tribunal.
It is the case of the insurance company that the delay in filing the FIR and the wound certificate marked at Ex. P. 5 which specifies the cause of the wound as "legs got skid" was not properly appreciated by the Tribunal. It is further contended that the offended vehicle being tractor, was covered by the ''Farmers Package Policy'', as such, there is breach of condition of the policy and accordingly, the insurance company is not entitled to pay any compensation on the alleged accident claimed by the claimant involving the offending vehicle in the road traffic accident. Further, the quantum of compensation is also disputed by the insurance company on the ground that the Tribunal has wrongly taken the total disability of 35% not noticing the discrepancies found in the evidence of PW3 - doctor.
Per contra, learned counsel appearing for the claimant contends that the policy covering the offending vehicle was issued after the Registration Certificate was brought to the knowledge of the insurance company. As such, there is no violation of the terms and conditions of the policy. Admittedly, the appellant had no personal knowledge regarding the manner of accident and has not challenged the charge sheet filed against the respondent No. 1. Mere allegations disputing the factum and manner of the accident is not suffice unless proved by cogent evidence. As regards the quantum of compensation determined by the Tribunal, it is argued that the same does not commensurate with the grievous injuries sustained by the injured, accident caused due to the rash and negligent driving of the driver of the offending vehicle in question being proved.
Having heard the learned counsel for the parties and perusing the material on record, it is noticed that the insurance company is disputing the liability of indemnifying the owner on two grounds:
� "Firstly, the offending vehicle was not involved in the accident based on the wound certificate.
� Secondly, on the breach of terms and conditions of the policy."
Regarding first contention, these grounds were not pleaded either in the written statement nor argued before the Tribunal. No evidence is available on this issue, more particularly, about wound certificate. The grounds which were not urged before the Tribunal cannot be permitted to be raised for the first time in this appeal which requires the pleadings and evidence to rebut the plea of the insurance company. Respondent No. 1 - driver has not entered the witness box nor cross examined PW1, charge sheet filed against R-1 fortifies the occurrence of accident. As such, the first submission is negated.
Secondly, as regards the breach of the terms and conditions of the policy, it is noticed that the vehicle was covered under the ''Farmers Package Policy''. It is the specific case of the insurance company that suppressing the fact that the tractor is a commercial vehicle, less premium was paid. However, RW1 has admitted in the cross examination that while issuing the policy, the Company has verified the RC Book and after ascertaining the same, the insurance policy is issued which establishes that no fraud was played by the owner of the vehicle at the time of obtaining the insurance policy. As long as the insurance policy is current and covers the vehicle, the defence of the insurance company not supported by cogent evidence is not worthy of acceptance. The second submission is also not sustainable.
As regards the quantum disputed by the insurer it is dealt in common with the cross-objections filed by the claimant seeking enhancement of the compensation awarded by the Tribunal. It is noticed that the injured has sustained grievous injuries and has taken treatment at VIMS Hospital, Bellary as an inpatient for a period of 31 days. Further, he has also taken treatment at Bangalore. The injuries sustained by the injured as per the wound certificate and the discharge summary would reveal the fracture of pelvis resulting in post traumatic urethral destruction. According to the doctor''s evidence and the disability certificate, it is an irreversible damage. The Tribunal has observed that even at the time of adducing evidence, the victim was present in the Court with catheter which demonstrates beyond doubt the pain and suffering the injured underwent and has to suffer for his entire life which requires to be suitably compensated. However, the Tribunal though noticed the grievous injuries sustained by the injured, has not awarded compensation commensurate to the injuries and the continuous pain and suffering which necessarily requires interference by this Court.
The Tribunal has taken Rs. 3000/- per month as the income of the injured considering his avocation as a coolie. Even in the Lok-Adalath, for the accident that occurred in the year 2009, the income of the coolie is considered as Rs. 5,000/-. If the same is adopted to the present case, the income of the injured will be assessed at Rs. 60,000/- per annum. If the same is adopted to the total disability of 35%, it would work out to Rs. 2,31,000/-. Accordingly, the income awarded for the loss of income during treatment and the future loss of income on account of permanent partial disability is enhanced. from Rs. 1,38,600/- to Rs. 2,31,000/-.
Under the head of pain and suffering, the Tribunal has awarded compensation of Rs. 50,000/- which is too meager. Having noticed the unfortunate fate of a coolie who has to struggle for his life with the catedra, necessarily losing his future earning capacity, the compensation awarded for pain and suffering by the Tribunal requires to be enhanced. In the considered opinion of this Court, it would be appropriate to enhance it by Rs. 50,000/-.
It is also to be noticed, the compensation awarded under loss of amenities of Rs. 50,000/- is too meager considering the injury caused to urethra which is irreversible causing total damage to the urine passing canal, to move with the catheter for the entire life would deprive him from the enjoyment of social life, also would drive the person to a secluded life, definitely causing damage even to his marital life. Taking all these factors into consideration, this Court is of the opinion that the compensation awarded under this head for loss of amenities of life requires to be enhanced by Rs. 50,000/-.
It has also to be taken into consideration that a person to live on a catheter requires regular check-up and treatment and has to incur medical expenses to lead his life. It would be appropriate to award compensation of Rs. 25,000/- for his future medical expenses.
Accordingly, this Court is of the considered opinion that the total compensation of Rs. 2,77,600/- awarded by the Tribunal is enhanced by Rs. 2,31,400/-, totally amounting to Rs. 5,09,000/-.
The cross objections of the claimant is partly allowed. The appeal filed by the insurance company is dismissed. The insurance company shall deposit the enhanced compensation within a period of six weeks from today with interest @ 6% p.a. from the date of petition till realisation. Amount deposited by the insurance company shall be transmitted to the Tribunal. The claimant is at liberty to withdraw 50% of the enhanced compensation and the remaining 50% shall be deposited in a nationalised bank for a period of 5 years.
Sri Shivaraja Hiremath, learned counsel is permitted to file vakalath in MFA 20289/2011 on behalf of claimant/respondent No. 1.